Lord Chancellor and Law Officers (Constitution Committee Report)

Lord Wallace of Saltaire Excerpts

Thursday 20th July 2023 Grand Committee

[Lord Wallace of Saltaire (LD)]

My Lords, I vividly remember the evening in which the news filtered through that the office of Lord Chancellor had been abolished. Lord Onslow dashed into the Lords to demand that we immediately suspend other proceedings until the Government gave us an answer as to what the implications of that were. The Government have not yet given us a full answer as to the implications of that, and here we are, many years later, discussing what sort of role we want the half-Lord Chancellor that we still have to play.

I am not a lawyer, although I spent three years in the United States teaching the American constitution when I was a graduate assistant in an American university. Like others, on the one occasion that my wife and I attended a formal event at one of the Inns of Court, we were certainly treated as outsiders and incomers. Those who recognised us kept asking us, “What are you doing here?” We had to explain that, although we were not in any sense lawyers, we had, as junior lecturers at the University of Manchester, regularly gone to the pub with a junior lecturer in law, who was then called Brenda Hoggett, and had retained that friendship over a long period.

There are three elements in this report and the debate. First, there is the importance of the rule of law as a guiding principle in government; the allocation of responsibility for safeguarding that principle; and, behind that, a wider issue of who is responsible for defending the conventions of our constitution, which have been so easily disregarded in the chaos of the last six or seven years. Secondly, there is the question of the combination of the role of the Lord Chancellor and the Ministry of Justice. The third, which is a little different, is the role of the law officers: the Attorney-General and the Solicitor-General.

Should we regard the experience of the last six or seven years, with its chaotic roundabouts of ministerial reshuffles, the bending of conventions and disregard for the principles of the rule of law, as an exceptional and unlikely event, not to be repeated, or as a shift that now requires us to tighten constraints on executive power? I fear that we need to tighten the constraints on executive power and cannot go back to the “good chaps” period, of which the noble Lord, Lord Hennessy, wrote a wonderful obituary.

There are further questions. I am fascinated by the question of the Lord Chancellor’s oath. I suspect it would be very good for the Government of this country if the Prime Minister, and perhaps a number of other senior Ministers, had to swear an oath on taking office. The Lord Chancellor should not be the only one to have to take an oath, but that is perhaps a subject for another study and another report. There is the related question of the size of the Cabinet. Some of us think that a Cabinet which has more than 30 people sitting around the table is completely ineffective and incapable of taking decisions, and ought to be reduced by at least a third. Effective Cabinet government requires really no more than 20 or 24 people around a table. Then there is the length of time in office. The extent to which ministerial reshuffles have taken place and, if one reads the press, are likely to take place again, just as Ministers are beginning to learn what their jobs are about, is one of the dysfunctional aspects of our current form of government.

The traditional Lord Chancellor’s role was, of course, extremely odd: both a senior Minister and a judge, and, at the same time, the Speaker of the House of Lords. I asked myself, as I read the report, whether we need a designated protector of constitutional behaviour and the rule of the law inside the Cabinet. I am not sure. Should we need such a person, would such a constitutional guardian role be better played now by officeholders in the institutions outside the Cabinet, as part of checks on executive power? We have moved in that direction to some extent, towards institutional checks and balances, over the last 30 years, with a separate Supreme Court, the Committee on Standards in Public Life, the various codes and the Independent Adviser on Ministers’ Interests. We may now need to move further.

I am attracted by the case for recreating a department of constitutional affairs and making that responsible not only for relations with the Crown dependencies but for the delicate task of relations with the devolved national Governments of Scotland, Wales and Northern Ireland. Post devolution, separate departments in Whitehall for each of these three nations are difficult to justify—three seats around the Cabinet table without much of substance to contribute to most discussions on domestic or foreign policy. Three Ministers of State, perhaps, supporting a Cabinet Minister whose focus on judicial and constitutional affairs would naturally include maintaining the delicate balance between devolved autonomy and UK oversight, might well be a great deal better.

I do not buy the “financial clout” argument for combining the judicial oversight and constitutional role with prisons and probation. The Foreign Office—the department of which I have the most experience and expertise—has always had one of the smallest budgets in Whitehall; that has not always led its Secretary of State to be marginalised in Cabinet.

The suggestion in the Government’s response to the Constitution Committee’s report that

“there is greater strength in having a number of senior Ministerial leads on discrete constitutional matters”

sounds like a recipe for confusion and chaos. I note, for example, that the Department for Levelling Up, Housing and Communities is now responsible for electoral law and administration, as if that were purely a matter of local concern rather than part of our constitutional procedures. For that matter, that department seems to muck about with our local and regional level of governance and democracy whenever its Secretary of State feels like it, although that is also part of, or ought to be considered part of, our constitutional structure.

There is a case for a stronger parliamentary counterbalance to the Executive in matters of constitutional importance and propriety. I am attracted by the idea I heard the other day from another noble Lord, a lawyer, for a Joint Committee of the two Houses on constitutional issues—a sort of parallel committee to the Intelligence and Security Committee in structure and status—that would act as Parliament’s cross-party voice and would relate to such other constitutional guardians as the Committee on Standards in Public Life, the Independent Adviser on Ministers’ Interests, the Commissioner for Public Appointments and the House of Lords Appointments Commission. Again, that is a matter for further discussion.

The Government’s requirement for legal advice is separate from the question of the post of Lord Chancellor. The Government clearly need a law officer—the Attorney-General—to advise on the domestic and international legality of proposed actions, among other duties. I am not sufficiently expert to know whether one needs a Solicitor-General as well as an Attorney-General; perhaps that is one question that we ought to throw out. Certainly, we do not need both as legally trained politicians when we are in a situation, as the noble and learned Lord, Lord Garnier, remarked, where it is very difficult for good lawyers to be encouraged to join Parliament.

Perhaps we have to recognise that the definition of what an MP does has changed quite radically. Part-time MPs are no longer regarded as acceptable, either by their constituents or by other MPs—as Geoffrey Cox has discovered on occasion. That may mean that we may need to look elsewhere, either to the Lords or to appointments that may be semi-political, such as lawyers advising the Government, because we will no longer have enough people of the calibre we want in the Commons, although we may well be able to continue to appoint them to whatever we call the second Chamber in 10 to 20 years’ time. Legally-expert figures who are also aware of politics are there to be found at the Bar but they do not necessarily want to commit themselves to becoming full-time, elected politicians.

After the unconstitutional shenanigans of the past six years, whatever Government emerge after the next election must embark on reforms to strengthen constitutional protections and improve the quality of governance. The Institute for Government and the Bennett Institute for Public Policy in Cambridge published just yesterday a new paper proposing a number of practical reforms and longer-term innovations that any Government who take office after the next election should consider. These are questions that I hope the Constitution Committee will continue to follow but which we should all consider in our parties, and across the parties, as we approach the next election.

Nuptial Agreements

Lord Wallace of Saltaire Excerpts

Tuesday 25th April 2023 Lords Chamber

[Lord Bellamy (Con)]

When the Law Commission’s report is available.

[Lord Wallace of Saltaire (LD)]

My Lords, it was very reassuring to hear the Minister say that we need to consider legislation very carefully before it is introduced and see how it fits in with other Acts and so on. Can he assure us that similar procedures have been applied to some of the legislation currently before the House with which we are struggling?

[Lord Bellamy (Con)]

The Government always do their best to ensure that the legislation is comprehensive and consistent.

National Security Bill

Lord Wallace of Saltaire Excerpts

Committee stage
Wednesday 18th January 2023 Lords Chamber

[Lord Coaker (Lab)]

I say to the Minister, before he sits down, that in view of what the noble Lords, Lord Pannick and Lord Carlile, have said, it is not satisfactory. We do not have a policy statement, we cannot see the regulations and, when the regulations are passed, the Government will pass them through the negative procedure. I would have thought, at the very least, given the worries and concerns that have been raised, that the affirmative procedure, as the Delegated Powers Committee said, in these circumstances in particular, might be something the Government would consider. I ask the Minister to reflect on that.

[Lord Wallace of Saltaire (LD)]

I hope the Minister will agree to draw the attention of his department to the debate held in this House last week on delegated legislation and to the very strong sense across the whole House, including on his Benches, that this House is meeting a Government who give us less and less information about regulations and prefer to leave more and more out of Bills so that Ministers may act as they are. This is an abuse of Parliament and should not be pursued further. That message is particularly important for a Bill such as this, and the Government should consider it.

[Lord Murray of Blidworth (Con)]

I have no doubt that the department will reflect on those points. We are all very aware of last week’s debate, in which the Leader participated.

Crown Dependencies: Contributions

Lord Wallace of Saltaire Excerpts

Thursday 1st July 2021 Lords Chamber

Asked by

[Lord Wallace of Saltaire]

To ask Her Majesty’s Government when they next intend to review the adequacy of the contributions made by the Crown dependencies towards the cost of their access to the United Kingdom’s (1) public services, (2) provision of security, and (3) international representation.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, the Crown dependencies are responsible for their own domestic affairs, although islanders sometimes make use of UK public services such as health or education, for which payment is made according to bespoke arrangements. The UK is responsible for the Crown dependencies’ defence and international relations, in recognition of which they each make a voluntary contribution. The Government are content with the present arrangements.

[Lord Wallace of Saltaire (LD)]

My Lords, it is general government policy to recover costs through charges for services provided, particularly for those who do not pay taxes in the UK. It seems odd that the wealthy Crown dependencies are exempt from this, particularly given that Brexit imposes extra costs, as we have seen in fisheries protection and certainly representation overseas.

I was interested to hear that educational charges are going to be extended. Is the Minister aware that the one announcement made by the Department for Education since January has been the extension of home student fees to all students from the Crown dependencies?

I am amazed that, in his letter to me of 10 May, he repeated the absurd suggestion that Guernsey’s contribution to the defence of the UK is

“the cost of maintenance of the breakwater in Alderney.”

Has the Ministry of Defence not told the Ministry of Justice that the Alderney breakwater, which was built in the 1860s to provide an anchorage for the British fleet in the event of a French threat, ceased to be of interest to our defence before the Second World War?

[Lord Wolfson of Tredegar (Con)]

My Lords, I hope I would never make an absurd point, either to the noble Lord or anybody else. I am certainly aware that there is no current or perceived future requirement to use the Alderney breakwater for operational military purposes, but it still needs to be maintained to preserve the facilities in Alderney’s only serviceable harbour. The Government previously retained responsibility for maintaining the breakwater because it was built by the UK for naval purposes and the Bailiwick of Guernsey could not be expected to subsidise the cost at the time.

When we requested that the Crown dependencies start making contributions towards the cost of defence in 1987, Guernsey assumed responsibility for maintaining the breakwater alongside remitting passport fees for British passports issued in the bailiwick. Irrespective of whether the breakwater serves any defensive purpose, by meeting the maintenance cost that would otherwise fall on the Government, Guernsey contributes to the cost of its defence and international relations.

Libel and Defamation Cases: Cost to Public Funds

Lord Wallace of Saltaire Excerpts

Monday 14th June 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, as I have said, the 2013 Act is regarded as working well and there are no current plans to reform or revise it. However, we will always consider a review if significant problems are demonstrated. Indeed, the 2013 Act itself was a response to such concerns and problems. Obviously, it is inevitable that libel cases will still be brought, but we consider that the Act gives the courts a proper basis on which to determine them by setting out the correct legal framework. The decisions of the courts in interpreting the 2013 Act have helped to reinforce the intention and policy underlying that Act.

[Lord Wallace of Saltaire (LD)]

My Lords, in answer to a Written Question that I received two weeks ago, the Foreign Office stated:

“Persons or entities designated under the Sanctions and Anti-Money Laundering Act 2018 are not banned from initiating action in UK courts.”


Does that incidentally mean that if costs were awarded against such people or entities, they would be forbidden to reimburse them? Does the Minister not regard this as a fundamental abuse of British sovereignty?

[Lord Wolfson of Tredegar (Con)]

My Lords, the response from the Foreign Office was absolutely right. Legislation imposes proportionate sanctions where warranted, but restricting access to justice is something else. When it comes to payment of costs awarded against such people, I can say to the noble Lord from experience that there are ways in which such costs can be ordered and paid, but one has to be very careful in such circumstances not inadvertently to breach the sanctions regime.

European Union Referendum Bill

Lord Wallace of Saltaire Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Goldsmith]

The noble Lord is right about that. Mind you, if the recommendation had been taken up in 2008 when I wrote the report, who knows where we would be today?

[Lord Wallace of Saltaire (LD)]

My Lords, since the noble Lord, Lord Green of Deddington, mentioned our conversation, perhaps I may say one or two things. We all recognise that our current franchise and our concept of citizenship are a mess and need attention. We are about to debate under some of the following amendments how much attention we should give to tidying up our franchise now, or whether it should be addressed more broadly later. On citizenship, I am very struck by the extent to which dual citizenship extends across Britain and elsewhere. I asked several times when in government how many dual citizens there were scattered around the world, and the answer was always that we do not know. I recall a visit to northern Cyprus in which my driver told me that he was a British citizen, a Turkish citizen, a Greek-Cypriot citizen and a Turkish-Cypriot citizen, and he enjoyed choosing between them as he travelled as to which passport he might take. As the noble and learned Lord, Lord Goldsmith, said, the question of citizenship is extremely fuzzy.

The question of when we would have the referendum is addressed in the amendment. I hope we have it before 1 January 2017. I have some doubts as to how far we should address this broader issue now, in this specific case, although we will address it again under further amendments.

Finally, I congratulate the noble Lord on his argument that we should use this as an example of where we might harmonise with other member states. I assume that that comes from his commitment to ever-closer union.

[Lord Mackay of Clashfern (Con)]

My Lords, it was my privilege to participate in presenting to your Lordships’ House the citizenship Bill in 1982, so I am sorry to think that it is all in a mess—but these things happen sometimes. I was inclined to think that, in principle, this was a sound amendment, as it would be right that only British citizens should have a vote in this referendum. That is my position in principle, and I am glad to hear that there is some way in which that can be met. However, my difficulty now is that, in a sense, the franchise will depend on the date on which the referendum is called, which is an unfortunate consequence of the practical need for the changes. Therefore, I am very willing to listen to my noble friend when he explains why I should not support this amendment.

European Union Referendum Bill

Lord Wallace of Saltaire Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Hamilton of Epsom]

My Lords, I hope that we are now moving into slightly calmer waters. I tabled this amendment in anticipation that the House might vote to enfranchise 16 and 17 year-olds. I do not think there can really be too much opposition in the House to my amendment because we have to ensure that the new franchise actually happens. The amendment enfranchising 16 and 17 year-olds passed by a very big majority in your Lordships’ House and it may well be that it never comes back from the Commons, either. There are a number of different reasons why the other place might actually accept the amendment, so there may well be no future opportunity to amend it.

The whole point of my amendment is to ensure that we do not enfranchise 16 and 17 year-olds with one hand and disenfranchise them with the other. We have heard different stories from the Electoral Commission. The noble Baroness, Lady Morgan, said that she had been assured by people at the Electoral Commission that it would be possible to get all this through by September. But we are in uncharted waters and we really do not know how long it is going to take to get the new register drawn up; it is completely new territory. All these people have to be individually registered, which may take a quite serious amount of time.

All my amendment does, which I am sure must be acceptable to the House, is to say that the Electoral Commission must be able to tick the box for the Government and say, “Yes, we have got a decent number of 16 and 17 year-olds on the electoral roll”—I am not saying it should come back and say that it has got 100% of them—and that should be acceptable to everybody. We do not want to end up with a whole lot of 16 and 17 year-olds going round saying, “I was told that I had a vote but I never got on the electoral roll”— because the process was only half completed, or whatever. So is it really too much to leave it to the Electoral Commission to tell the Government or whoever is deciding on the date of the referendum when the new register has been drawn up and everything is in place?

I do not pretend to know how long the process is going to take. At one stage the Electoral Commission was telling us that it would take up to 12 months. It is now reining back from that and saying that perhaps it will be quicker. But that is not really where I come from. It does not matter how long it takes. If it takes three months, fine. If the Electoral Commission can come back in three months and say that the job is done, that is absolutely fine and the referendum can be held after that. But it is very important to ensure that we do not, as I say, give enfranchisement to 16 and 17 year-olds with one hand and then, by having a very early referendum, ignore all those who are not on the electoral roll and take it away with the other. That is the point of my amendment. I beg to move.

[Lord Wallace of Saltaire (LD)]

My Lords, if I had heard the noble Lord, Lord Hamilton of Epsom, arguing against this I would think it a blatant attempt to bias the level playing field of which he is so fond by delaying the referendum. This amendment is simply unnecessary because the Electoral Commission will of course vouch for when the process has reached an appropriate stage. We therefore do not need to write this into the Bill. While I am on my feet, in his last speech during Committee the noble Lord referred to our friends and enemies within the European Union but did not specify which Governments he thought were our enemies within it. If he is going to reply, it would perhaps be helpful if he said whether they are the German Government, the French Government or others, because that would help us in understanding where he is coming from in the various amendments he has tabled.

[Lord Hamilton of Epsom]

That is a particularly silly point from the Liberal Benches. I was merely making the point that we have people who are on our side in certain negotiations, and people who are against us. That was the rather loose way in which I used the term “enemies”. To go back to the noble Lord’s earlier point, the fact is that the Electoral Commission’s job is to advise the Government, who do not have to take its advice. The Government could say, “There is a wonderful opportunity now to win this referendum” and hold it after three months, when only a handful of 16 or 17 year-olds would be on the register.

Ministerial Code

Lord Wallace of Saltaire Excerpts

Tuesday 3rd November 2015 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, the Minister may recall that Justice Scalia of the US Supreme Court has argued on a number of occasions that the United States should not pay attention to the conventions and constraints of international law because of the exceptional perfection of the US constitution. Is there a similar degree of exceptionalism in the British Government’s approach to international law, or do we expect others to pay perhaps a little less attention to the constraints of international law than previously?

[Lord Faulks]

Justice Scalia is an originalist on the American Supreme Court and has a particular view of America’s position. Our position is that all Ministers are obliged to abide by the law, including, in so far as it is ascertainable, international law in this country.

European Union Referendum Bill

Lord Wallace of Saltaire Excerpts

Monday 2nd November 2015 Lords Chamber

[Lord Dobbs]

I will be delighted to, and I thank the noble Lord for his intervention. I talked to the Electoral Commission just a little while ago, before the vote last week on individual electoral registration. It emphasised that if we were, for instance, to offer 16 and 17 year-olds the vote, which is a position, as he knows, that I have put forward, it would have exceeding difficulty—the noble Lord shakes his head. I am not quite sure what I have said that he could possibly disagree with, as I have not yet come to a conclusion. Maybe he has already made up his mind. The commission said that it would have exceeding difficulty in making those arrangements for 16 and 17 year-olds who are in this country before the autumn of next year. How much more difficult would it be for people when we do not know who they are or where they are? I ask this Committee to consider the practical difficulties of what we are asking for and not to end up passing bits of legislation that make the referendum a mess.

[Lord Wallace of Saltaire (LD)]

My Lords, I think that the noble Lord, Lord Green, was implying that we would expect expats living elsewhere in the European Union to vote in one direction rather than another. Certainly during my most recent visits to southern France, southern Spain, Portugal, Italy and Cyprus, it became clear that the two British newspapers that are most readily available are the Daily Mail and the Daily Telegraph. The Guardian is the most difficult one to obtain, so I am not sure that one should assume that people will naturally vote one way or another.

[Lord Dobbs]

Again, I am grateful for the intervention, but I hope now to be able to sit down. I do not think that the noble Lord was listening because I do not believe that I made the slightest indication as to whether expat voters would vote one way or the other. That is not our concern, and the decision should not be based on whether they are likely to vote in one direction or the other. It is a matter of rights and of practicality.

--- Later in debate ---

[Lord Blencathra]

I think I detected a slight change in the noble Lord’s argument as he was talking. Of course, the Government could easily say that if we leave the EU we will no longer be EU citizens and 56 million people will say, “So what? What are the consequences of that?”. The noble Lord went on to say that the Government could then spell out what they would aim to achieve in any renegotiation of people’s rights, but that is speculative. That is the point I am making. Of course we can say that people will no longer be EU citizens, but we have no idea, if we were to stay in or leave the European Union, exactly what the rights negotiated by the British Government and EU countries would be. I do not want to get bogged down. I have perhaps given way too much to the noble Lord, Lord Kerr of Kinlochard, because I really like his accent.

Where the EU has a position under European law, we are under an obligation to co-operate with it and support it. For years we have watched the EU desperately trying to take over the negotiating positions of member states in all international fora. That is a trend. It has taken our place at the World Trade Organization. The result is that we have free trade agreements with little countries but nothing with the big power blocs that matter—nothing with the ASEAN countries, nothing with Japan, nothing with India, nothing with the Gulf Cooperation Council and nothing yet with the USA, although we are apparently close. These are all things that the UK could have negotiated years ago on its own.

[Lord Wallace of Saltaire]

I do not know whether the noble Lord reads the newspapers, but has he seen the recent speech by the US trade representative who said they would have no interest whatever in a separate trade negotiation with the UK?

[Lord Blencathra]

Absolutely. I saw that and one must distinguish between US political talk and UK factual reality.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, perhaps as two of the amendments mention the EU balance of competences review, I might be allowed to comment on the extent to which the 32 reports that that review produced over two years in four tranches have provided a solid basis of evidence for a rather more dispassionate result. I am well aware that at the time of the 2010 coalition agreement, some in the Conservative Party thought that inviting evidence from stakeholders in law, business, the economy, aviation, and so on, would provide the basis to ask for repatriation of powers, which those various stakeholders felt were already excessively transferred to Brussels.

The outcome of the 32 reports, which I warmly recommend to the noble Lord, Lord Hamilton of Epsom, as evening reading over the next six months, was an overwhelming conclusion from most of the 2,500 pieces of evidence that came in that the current balance of competences suits us fairly well. That is part of the reason why people in No. 10’s press office and others wanted to ensure that the reports were published the day after Parliament rose for the summer or for Christmas so that they would receive as little publicity as possible, but they are there.

I particularly recommend to the noble Lord, Lord Hamilton, the report on criminal justice co-operation and the evidence from the Association of Chief Police Officers and various other bodies on why the current arrangements are so strongly to Britain’s advantage. I also recommend the report on co-operation in civil justice, which contains evidence from the Faculty of Advocates in Scotland and the Law Society.

[Lord Hamilton of Epsom]

I am very grateful to the noble Lord for telling me what my reading should be, but can he explain why the existing arrangements cannot continue just because we vote to pull out of the EU?

[Lord Wallace of Saltaire]

My Lords, I think the noble Lord wants to negotiate that we should have a special status and be able to pick those things that we want and say no to those that we do not. However, all international multilateral negotiations are trade-offs and it is not always easy to get exactly the arrangements that you want. There are those who would argue—as I think the noble Lord, Lord Blencathra, would—that much of what is currently imposed on us is a conspiracy cooked up by people in Brussels. I am merely saying that we need to get hold of the evidence of where we are and what are the costs and benefits of a whole set of very complicated international regulations in a highly internationalised economy and a world where the number of British citizens who cross the channel each year has increased by a factor of 10 over the past 30 years. That has certain implications for policing, crime and all sorts of other things.

[Lord Forsyth of Drumlean (Con)]

My Lords, I apologise to the Committee for being late to our proceedings. British Airways cancelled my flight so I drove down from Scotland.

The noble Lord, Lord Wallace, has the advantage that he has read this competence review. Can he therefore explain why, for example, it is necessary that the guarantee on people’s money held on deposit in this country, which previously stood at £85,000, has to be reduced to £75,000 because the euro has fallen in value? Surely that should not be decided at a European level.

[Lord Wallace of Saltaire]

My Lords, politics is precisely about the level at which a whole set of decisions are taken. Until the mid-1980s, when Margaret Thatcher launched the single market initiative, international regulations were largely American decisions on standardisation which others—such as ourselves, the Germans and the French—had to accept. Now, these regulations are often negotiated at EU level and then, in turn, negotiated with the United States. The various reports go into some detail on the advantages and disadvantages of acting at the national, subnational, European and global levels. That is part of what happens across the world. I merely point out that some of this analysis has been done. It is extremely important that, as the debate continues, there should be further analysis.

[Lord Forsyth of Drumlean]

Before we leave that point, is the noble Lord seriously arguing that a Government who guarantee through a guarantee scheme in this country deposits put by pensioners in their banks should be left powerless to decide the level of guarantee; and that the review of competences, if it allowed for that, was in any way competent?

[Lord Wallace of Saltaire]

The noble Lord may not have noticed that banking has become a little less national and a little more international over the past 40 years. That is part of the reason why the negotiations over the amount of bank reserves have taken place. That matter has been negotiated for the past 100 years through the Bank for International Settlement and a range of other bodies. Since modern banking developed, there has always been a range of international agreements on aspects of banking, although not in so much detail.

A small number of think tanks have provided some valuable advice. I have great respect for Open Europe, a largely Eurosceptic think tank in origin but which respects the evidence it finds and produces worthwhile reports. Similarly, I have great respect for the Centre for European Reform. There are others on both sides that are less reliable. I say to the noble Lord, Lord Green of Deddington, that Migration Watch stands out by the careful way in which it tries to find out the most accurate figures. That is highly desirable. We need accurate figures. The question of what is happening on immigration to this country—how much is long term and how much is short term, in the case of Spanish and Portuguese workers here who may go back when their economies recover—gets us into the range of speculation, but at least we know where we are at present. That is what we need for this debate. It is not easy. We know that there are conspiracy theorists all round. There are great fears about what might happen. However, dispassionate analysis and evidence, where we can find it, are essential to intelligent debate, and that is what the amendments of the noble Lord, Lord Hannay, and others are about.

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[Lord Wallace of Saltaire]

Would the noble Lord allow for the possibility that the Prime Minister might have reached the position he now holds because of his concept of the British national interest and his position as Prime Minister in trying to define that national interest?

[Lord Stoddart of Swindon]

Yes, I believe that the Prime Minister believes that, but the British national interest cannot be served in the European Union. That is because the European Union is exactly what it says it is and what it wants to become. It has been made perfectly clear by unelected officials and indeed by elected people that they want further integration. However the Prime Minister tries, he will never be able to join a full Union unless he is prepared to agree to more integration, and that of course will also mean joining the euro. Further integration must include the euro and anyone who wishes to be part of further integration will have to join it or else leave or become some sort of associate member. Those are the facts and we should not try to deny them.

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[Lord Forsyth of Drumlean]

My Lords, I normally agree with the noble Lord, Lord Turnbull, and I have the greatest respect for him and indeed the Treasury. He is right to say that the Office for Budget Responsibility has been a success. I would therefore be very concerned if we were to accept the amendment and taint the reputation of the OBR by giving it this impossible task. Perhaps the noble Lord could contradict me but if I were to take the Bank of England, for example, an organisation that has a formidable reputation, and I were to look at the forecasts it has made about the progress of the economy over the past 20 years—indeed, over most of my lifetime—the only thing that has been consistent about those forecasts is that they have been consistently wrong. The notion that this body called the Office for Budget Responsibility can look into its crystal ball—I am reminded of that character that used to appear on the National Lottery, Mystic Meg—and predict the future is asking a very great deal of it. As my noble friend Lord Blencathra has said, it is hard to see, given the existing responsibilities of the OBR, how it would be able to set about this task—with the necessary expertise, at any rate. As he listed its responsibilities, it seemed to me that the OBR has quite enough on its plate without adding to it.

I support my noble friend, though, and indeed my noble friends Lord Hamilton and Lord Flight, in the amendment that seeks to bring a balance to this. I am not going to repeat the arguments that we had in considering the previous amendments, but if you are walking in the woods and you see a bear trap, it is probably not a good idea to put your leg in it. None of the arguments that one hears about the EU is couched in terms of, “If we weren’t in it, we would want to join it”. That was what struck me about the Prime Minister’s remarks about Iceland and Norway over the weekend. No one in Iceland or Norway wishes to join the European Union.

[Lord Wallace of Saltaire]

My Lords, the Government of Norway have consistently had a large number of Ministers who wished to join. There are all sorts of reasons why a substantial chunk of its population does not agree. I myself was involved in discussions with the last Icelandic Government, who also wished to join. So “no one” is a mild exaggeration.

[Lord Forsyth of Drumlean]

I do apologise to the noble Lord. He is still in ministerial mode; I was talking about the people. I know the people of Iceland extremely well; I have gone there every summer to fish for the past 12 years. I know exactly what has happened in Iceland. I note that the noble Lord also, in his typically selective choice of argument, talks about the last Government of Iceland, not the present one, whose Prime Minister himself made the point to our Prime Minister that they were perfectly happy outside the EU because they had all the fish and, I say to the noble Lord, Lord Davies of Stamford, the opportunity to deal with their financial services crisis as they saw fit, which did not involve bailing out the bondholders and the bankers, and very successful they have been.

The noble Lord, Lord Wallace, distracts me from my bear trap.

[Lord Wallace of Saltaire]

My Lords, the very thought that the noble Lord would ever intervene on someone to distract them is something that I would not conceivably believe.

[Lord Forsyth of Drumlean]

I have to say that the noble Lord is probably the only Member of this House who I think might possibly put his leg in the bear trap while it was still in the wood. No one is making the argument in this country, in Iceland or indeed in Norway that if we were outside the EU we should join now on the terms that we are already subject to. That is the point about the bear trap.

However, we are in the position where our leg is in a bear trap. The argument from the noble Lord, Lord Turnbull, and from many of the people who have spoken today on these matters seems to be that it would just be too painful to take our leg out of the bear trap, and that the best thing is for us to stay where we are and bleed to death. I think we ought to consider what the benefits would be of taking our leg out of the bear trap, and that is what my noble friend Lord Blencathra’s amendment seeks to add to Amendment 22. I see that the noble Lord, Lord Kerr, wants to intervene, and I happily give way to him.

European Union Referendum Bill

Lord Wallace of Saltaire Excerpts

Wednesday 28th October 2015 Lords Chamber

[Lord Kerr of Kinlochard]

I would add a footnote to the important point made by the noble Baroness, Lady Suttie. I am afraid that I disagree with the noble Viscount who has just spoken. Perhaps the Scots are getting more than their fair crack of the whip in this debate, so I will be brief. The noble Lord, Lord Forsyth, was right to say that it was the SNP which gave the Scottish 16 and 17 year-olds the vote in the independence referendum. The noble Baroness, Lady Royall, was also right, as was the noble Lord, Lord Hannay, that the door was opened for them by the previous Government. But the noble Lord, Lord Forsyth, is correct: the 16 and 17 year-olds in Scotland all know that it was Edinburgh which gave them the vote. If the next thing they hear is that London will not give them the vote in the next referendum, it is an amazingly strong court-card to hand to the SNP.

[Lord Wallace of Saltaire (LD)]

My Lords, I had not intended to intervene at this stage, but I hear people saying that we should not make piecemeal changes. The Committee should read Clause 2, to which we are debating an amendment, because it makes piecemeal changes. There are several lines which refer to allowing Peers to vote in this referendum—800 of us. A number of further lines then spend a lot of time on Gibraltar— all 22,000 of them—and then the Irish and Commonwealth citizens in Gibraltar. I have been unable to discover how many there are of those, but I think there are probably around 100. These are piecemeal changes.

The problem was raised by a number of people at Second Reading that this referendum will be an exceptional vote. There is therefore a case for looking exceptionally at who should vote, whether it is in this set of amendments or in the following three groups, which we will be discussing later on tonight. The question is really: for this very important vote, which will affect the future of this country for the next 40 years, what are the appropriate changes that we wish to make in the electoral system? Clause 2 as it stands offers a number of changes. The question is what other changes we might wish to make for this vote.

[Earl Attlee]

My Lords, I hate to say this, but noble Lords opposite have challenged my thinking on the Bill, as a general issue, but I agree that piecemeal reform in this area is not desirable. I share the noble Earl’s anxieties. Noble Lords, particularly the Liberal Democrats, consistently argue that someone under 18 is a child, but when it comes to an issue of this magnitude, they suddenly then become an adult.

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[Lord Wigley]

My Lords, I had not intended to speak in this debate but there is one dimension that perhaps I can bring to the debate that few others could.

In Wales, perhaps in Scotland as well, apart from constitutional nationalism there is always a fringe of more extreme nationalism and there are fringes that impinge on racism. It is something that throughout my political career I have tried to stand against. I have made the point time after time, ad nauseam, that all people living in Wales, whatever their language, colour or creed, are full and equal citizens of Wales. It is a concept of civic involvement in the community in which they live. These amendments touch upon this. If we are going to go down the road of starting to differentiate on the basis of some concept of nationality as opposed to citizenship, we could be in very serious trouble indeed.

[Lord Wallace of Saltaire]

My Lords, perhaps I might briefly raise the question of what sort of numbers we are talking about. The noble Lord, Lord Green of Deddington, suggested that we had 2.7 million. I have to say that sounds high.

I spent some time in the EU balance of competences review trying to discover the best estimates of the numbers of citizens from other EU countries in Britain and of British citizens in other EU states. I am well aware that it is very difficult to get the numbers but the best estimates we came up with, with the help of the Home Office, the FCO and the DWP, were 2.2 million British citizens living in other EU member states and 2.4 million EU citizens from other states living here. If we then ask how many of them have been living here for five years and how many are entitled to vote, we probably come down to something in the order of 1.5 million to 1.75 million on the five-year limit. I suspect a very substantial number of those will be of western European origin, including the many people who are in mixed marriages—British-French, British-German, British-Dutch, whatever it may be. Those are the sorts of figures.

It would help, if we are going to return to this on Report, if the Minister could manage to discover between now and then how many citizens of other EU member states are currently on the British electoral register. That figure must be obtainable. I accept that the estimate of how many there are in total in this country is very difficult to pin down but that other figure at least we must be able to have.

[Lord Green of Deddington]

My Lords, there is not much between us. The noble Lord said 1.75 million; I said 1.9 million.

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[Lord Green of Deddington]

In that case, will the noble Lord explain why British citizens are not able to vote in a referendum in Ireland?

[Lord Wallace of Saltaire]

My Lords, this amendment demonstrates more than any other that our franchise consists of a series of historical anomalies and needs thorough reconsideration. We are clearly not going to get that for this referendum, but it is one of many problems with the current structure of our constitution.

I agree strongly with the noble Lord, Lord Davies, that the Irish dimension is extremely important. We all know that the Irish Government are actively concerned about the implications for Anglo-Irish relations of Britain voting to leave the European Union. It would very much be Anglo-Irish relations. I think Scottish-Irish relations might then become rather different, but we will see.

I question how conservative the noble Lord’s proposals are. As he notes in the amendment, there is a series of gradations of British citizenship, and full British citizens have a different status from British overseas citizens. I am not entirely clear why someone from the Cayman Islands, for example, or the British Virgin Islands should have the right to vote on our future in the EU, or actually someone from the Channel Islands or the Isle of Man, which are not part of the EU and which pay virtually no tax within Britain, should also be regarded as entitled to vote in a referendum on Britain’s future.

[Lord Green of Deddington]

The noble Lord asks a very good question. People from the islands he mentions—I think they are all islands—would have the vote if they were resident in Britain. The numbers involved would be trivial. This is a de minimis situation. As the noble Lord said, this is a very complex question of nationality, so there is no answer that will be entirely perfect, but I reckon my suggestion is as close as one can reasonably get.

[Lord Wallace of Saltaire]

If I may tempt the noble Lord a little further, I recall Migration Watch suggesting at one stage that children of immigrant mothers should be counted in our immigrant population. I do not know whether those people are less than fully British.

[Lord Green of Deddington]

That is wrong.

[Lord Wallace of Saltaire]

I think I read it in a Migration Watch suggestion. There was a question of whether people born outside Britain really are fully British citizens. I do not press that because I am aware that both Douglas Carswell and Daniel Hannan were born outside the United Kingdom—one I think in Ecuador and the other in Tanzania—and would lose their rights to vote under this. Wherever we stop we run into difficulties in defining who is fully British and entitled to vote, and who is not. I merely remark that since the concept of British citizenship is itself one of the many muddles we must contend with perhaps we need to be very careful how far down this road we go.

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[Lord Lexden (Con)]

I would like to make a small point of clarification, if I may, as far as the Irish Republic is concerned. At some point under Mrs Thatcher’s Government—I cannot remember the exact year—the Government of the Irish Republic extended to British citizens living there those voting rights that Republic of Ireland citizens have here. If British citizens are excluded from a referendum in the Irish Republic, it is because there is a separate electoral roll for that. As far as parliamentary elections are concerned, we are on all fours with the Irish Republic and have been for some years.

[Lord Wallace of Saltaire]

May I ask a factual question of the Minister, which, again, he may not be able to answer immediately? Are we sure that we can identify on the British electoral register who are British citizens, who are Irish citizens and who are Commonwealth citizens? I am not aware, from my time looking at electoral registers, that these are listed separately. If they are not listed separately, would it be possible to identify them between now and a referendum that might be in six or 12 months’ time? That seems highly relevant to the ability to apply this amendment, if passed.